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DA v DJ

In this case, decided in 2017, but which only appeared on Bailii in March 2020, Parker J considered in considerable detail the operation of s.48 MCA 2005: i.e. the jurisdiction of the Court of Protection to make interim declarations and decisions.

The case concerned a wealthy woman, about whom her children were concerned, and in respect of whom they wished to bring an application to the Court of Protection. The dilemma they – and the court – faced was neatly summarised in these two paragraphs:

As part of the preparation for this case, the applicant and his siblings have instructed a consultant psychiatrist, a Dr Glover, who has provided a report based on the statements to which I have referred and the text messages. He has not met or even seen DJ. I recognise, as indeed does Sir Robert, the limitations of this approach. Nonetheless, in my assessment, it is not one that can be wholly discounted or disregarded. The children have taken the view that it would be impossible, ineffective, and counterproductive to ask their mother to be assessed. She expresses herself to be wholly sane and rational.

[…]

The proposal which is made on behalf of the applicant is, in my view, a moderate and tempered one. It is intended with the support of the Official Solicitor through his representative, Ms Hobey-Hamsher, to introduce psychiatric expertise in the form of a psychiatrist to DJ at her home in pursuit of an assessment. In order so to do, an order is sought, after the necessary interim declaration, without which the court can make no order, and after case management directions, for disclosure to be sought from the borough in which DJ lives and from medical attendants who may have assisted her in the past.

In order to proceed, Parker J had to resolve the conflict between the decisions of HHJ Marshall in Re F [2009] EWHC B30 (Fam) and that of Hayden J in Wandsworth LBC v A McC [2017] EWHC 2435 (Fam) as to the threshold for engaging the jurisdiction. HHJ Marshall had held that what was required was “sufficient evidence to justify a reasonable belief that P may lack capacity in the relevant regard.” Hayden J had rejected HHJ Marshall’s approach, on the basis that “…the presumption of capacity is omnipresent in the framework of this legislation and there must be reason to believe that it has been rebutted, even at the interim stage. I do not consider, as the authors of the ‘Mental Capacity Assessment’ did that a ‘possibility’, even a ‘serious one’ that P might lack capacity does justification to the rigour of the interim test. Neither do I consider ‘an unclear situation’ which might be thought to ‘suggest a serious possibility that P lacks capacity’ meets that which is contemplated either by Section 48 itself or the underpinning philosophy of the Act.” Hayden J held that an interim declaration had to be founded upon a “solid and well-reasoned assessment in which P’s voice can be heard clearly and in circumstances where his own powers of reasoning have been given the most propitious opportunity to assert themselves.”

Parker J observed that:

It is uncomfortable, even invidious, to be asked to disagree with the decision of another judge of equivalent status. However, I am invited to approach this case by both counsel on the basis that Judge Marshall’s reasoning should be preferred to that of Mr Justice Hayden. Both Sir Robert and Mr Rees submit that the stark and restrictive interpretation by Hayden J, with its requirement of explanation to the asserted incapacitous person and ability for his/her voice to be heard, makes the Act unworkable in practice and runs a high risk of imperilling the safety and wellbeing of those persons whom the Act and the judges are charged with protecting. Reliance is placed upon Judge Marshall’s words which I have quoted at length and I am asked to approve them.

I regard her approach as consistent with the policy of the Act, one which makes sense on the basis of common sense and practicality as she observed. I agree that were it necessary in every case, as opposed to preferable, to defer assessment of capacity until there has been either a formal psychiatric assessment and/or engagement of P undermines the Act’s purpose and unsupported, indeed is positively contradicted, by the Law Commission report and the explanatory notes after the Royal Assent which I have cited, I am satisfied that I can take into account such materials which are plainly to be regarded as travaux préparatoires and which are, in any event, consistent with a purposive construction of the Act.

Furthermore, to require the “voice” of P to be heard before reaching a decision as to whether the s.48 gateway is passed is not to be found within the structure of the Act itself but is, adopting the approach of Judge Marshall, one of the matters to be taken into account when considering the case in the round. I note also that on the facts of the decision in respect of J in the Wandsworth case, the only material upon which the local authority appear to have relied was what J said himself. In contrast to the case before me, there appears to have been no other extraneous observation of behaviour, of attitude, examination of written material, and so on.

I can see that there may be cases in these highly fact-specific areas where to hear the voice of P explaining a comment or account may be an important part of the assessment process, particularly at the final stage. I disagree that there is any compulsion for such view to be expressed. In practice whether an explanation is required will mostly be where silence in the face of something calls for an answer.

Parker J went on to:

[…] disagree also with Hayden J that “a possibility” and particularly “a serious one” does not fulfil the test set out in s.43. Furthermore, an “unclear situation” which might “suggest a serious possibility P lacks capacity” in my view also falls within the criteria to be considered or the circumstances to be considered under s.38.

I have been urged not to seek to recast the clear words of s.48 in any different language which might further confuse the law in this area. It is obvious to me that the word “reason” in s.48 means that there must be evidence upon which a belief is formed. It probably needs to be prima facie credible, not in the sense that it is believed but in the sense that it is capable of belief (for instance, something which is plainly fanciful or impossible might be capable of being disregarded), and I see no reason, indeed it seems to me axiomatic in the phraseology of s.48(a) that the court is entitled to draw inferences from the prima facie facts which are sought to be established.

On the facts of the case, and applying the “simple test in the Act,” Parker J took the view that the s.48 threshold was crossed, and made an order (the precise terms of which were not set out in the judgment) to move the case forward. She had, earlier (and importantly) noted that, if the woman was “unwilling to see the experts instructed, or the medical professionals instructed; and/or the assessment is not concluded; it is agreed that a report should be written having regard to the written material alone.”

Comment

As we noted at the time that the Wandsworth judgment was handed down, it was a problematic decision (in which it appeared not to have been brought to Hayden J’s attention that Charles J, his predecessor as Vice-President of the Court of Protection, had expressly endorsed HHJ Marshall’s position). With respect, we entirely agree with the approach adopted by Parker J, which avoids some of the real difficulties that the Wandsworth judgment caused, in particular where it has not been possible to gain access to the person to carry out a proper capacity assessment.

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Covid-19

The vast majority of both Members of Chambers and staff are now working remotely from home, with a small staff team on site in our London office.

It would greatly assist us if you could either email or use direct dial or mobile numbers rather than telephone us on our main line. Our clerking team’s direct contact details (email, telephone and mobile) can be found hereand staff details here. Members’ direct dials can be found on their personal profiles by downloading their vCard.

We are also asking for all instructions and documents electronically. Where hard copies have to be sent to Chambers, please liaise in advance with the relevant clerk and member to arrange delivery directly to the barrister concerned.

Members can easily attend conferences and hearings using our telephone and video virtual conferencing facilities.